BEFORE THE IOWA INDUSTRIAL COMMISSIONER STEVEN D. BAWEK, Claimant, VS. File No. 776636 JENS OLESEN & SONS CONSTRUCTION CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and IOWA CONTRACTORS WORKERS' COMPENSATION GROUP, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Steven D. Bawek, against his employer, Jens Olesen & Sons Construction Co., and its insurance carrier, Iowa Contractors Workers' Compensation Group, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained October 5, 1984. This matter came on for hearing before the undersigned deputy industrial commissioner in Waterloo, Iowa, on December 30, 1986. The record was considered fully submitted at close of hearing. Pursuant to the prehearing stipulation of the parties and a form 2A filed May 5, 1986, claimant has received sixty weeks of benefits from October 6, 1984 through November 27, 1985. The record in this case consists of joint exhibits 1 through 10 as well as of claimant's and Kathleen Bawek's testimony. Joint exhibit I is Dr. Cameron's medical reports from October 5, 1984 through July 24, 1985. Joint exhibit 2 is St. Francis Hospital records from October 5, 1985 through November 26, 1984. Joint exhibit 3 is Dr. Delbridge's medical reports from November 16, 1984 through January 22, 1986. Joint exhibit 4 is Dr. Delbridge's office notes with x-ray reports attached from November 16, 1984 through January 22, 1986. Joint exhibit 5 is Dr. Worrell's medical records from June 12, 1985 through October 25, 1985. Joint exhibit 6 is Dr. Worrell's medical notes from June 11, 1985 through July 25, 1985 with a report of July 11, 1985. Joint exhibit 7 is the deposition of Dr. Delbridge taken May 20, 1986. Joint exhibit 8 is Dr. Worrell's medical report of July 7, 1986. Joint exhibit 9 is claimant's deposition taken May 20, 1986. Joint exhibit 10 is Dr. Worrell's deposition taken December 29, 1986. BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 2 ISSUES The issues for resolution are: 1) Whether a causal relationship exists between claimant's injury and his asserted disability; and 2) Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement. Per the prehearing report, the parties stipulated that claimant received an injury which arose out of and in the course of his employment, and that claimant's rate of weekly benefits is $232.52. Per the attachment to the prehearing report and agreement of counsel at time of hearing, the parties agreed that claimant received an injury to his left wrist and that if claimant's injury is to that scheduled member only, his permanent partial disability entitlement is that impairment rating which Dr. Delbridge assigned. Claimant contends, however, that he received a head injury causally related to his work injury which head injury extends his disability into the body as a whole and entitles him to industrial disability benefits. REVIEW OF THE EVIDENCE Thirty-two year old claimant testified that he was injured on October 5, 1984 when he fell from the top rung of an eight foot stepladder onto a concrete floor hitting his head and left wrist on the floor. Claimant sustained a two inch laceration .above the left eyebrow and minor abrasions to the middle forehead and a commuted Colle's fracture of the articular surface of the radius and ulnar styloid tip of the left wrist. Alan B. Cameron, M.D., initially treated claimant at St. Francis Hospital emergency room on his injury date with sutures for the facial laceration. Claimant's wrist was cast. After the cast was removed claimant was referred to physical therapy for wrist rehabilitation. On February 7, 1985, Dr. Cameron opined that claimant had nonunion of the distal ulnar fracture and evidence of osteoporosis with disuse. He then recommended claimant seek vocational rehabilitation to a less physical occupation and opined claimant would likely not be able to return to construction work. On May 14, 1985, Dr. Cameron opined that claimant was permanently disabled from work with heavy vibration to his left wrist or heavy jarring to the left wrist such as sledgehammer or air hammer work and that he should avoid lifting greater than twenty pounds in the left wrist. On July 24, 1985, Dr. Cameron stated that claimant had a restriction of supination with eight percent disability, restriction of pronation with eight percent disability, restriction of radial deviation with two percent disability, and restriction of ulnar deviation with two percent disability resulting in a thirteen percent "disability" under the AMA Guides combined values. Dr. Cameron is a family practitioner. Arnold E. Delbridge, M.D., a board certified orthopedic and hand surgeon, initially saw claimant on November 16,,1984. He then noted that claimant had a slight dorsal tilt of the distal radius with evidence of a compression fracture extending into the BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 3 joint. The doctor noted that claimant had some limitation of motion of his neck but no upper extremity numbness and had headaches which the doctor believed very likely were due to the blow on the head and to his neck injury. AP, lateral, obliques and odontoid views of his cervical spine showed no definite fractures of his neck though claimant continued to have neck pain. The doctor initiated physical therapy for the neck consisting of traction, heat, and massage through January 29, 1985. On May 10, 1985, Dr. Delbridge noted that claimant was recovering nicely except that he continued to have headaches and nausea albeit a CT scan of his head was negative. Dr. Delbridge suggested neurological consultation and on May 31, 1985 referred claimant to James P. Worrell, M.D., a board certified neurologist. After initially examining claimant, Dr. Worrell noted on June 12, 1985 that claimant reported that since his injury he persisted in having headaches and nausea and just did not feel well. The headache was reported as involving both sides of the head and temples and the back of the head as well and as of varying severity although present most of the time. Claimant was reported as "aggravated" by sunlight, exertion, heat, and straining, and as having headache with nausea and light headedness. Claimant was irritable and short tempered since the .injury and not as sharp as prior to the injury. Claimant's wife had noted a personality change in that the couple fought more. Claimant's sex drive was down; he had no energy; and was more forgetful. Claimant's sense of smell was reported as possibly somewhat reduced. Claimant had had no seizures. Coordination testing was quite normal with good associated movements noted. Dr. Worrell stated that claimant's symptoms of irritability, personality change, lack of concentration and drive could be construed as suggesting some type of frontal head injury with a partial frontal brain syndrome. Dr. Worrell prescribed Imipramine. The doctor suggested that an EEG and psychometric evaluation be considered. Claimant was again seen on July 15, 1985 with like symptoms. His EEG was normal. Dr. Worrell recommended an exercise program to try to stimulate his endogenous endorphins. Claimant testified that he had personality changes following his injury and that he was impatient with his family, lost his temper easily, and had a decrease in energy level and could not concentrate. He reported that he continues to have frequent back and neck stiffness following work and that he has headaches and nausea albeit these are not as frequent as early on after his injury. Claimant testified that he had thought that the Imipramine that Dr. Worrell prescribed had made his lack of energy and drive worse and that he had feared the medication could be addicting. He indicated that he called Dr. Worrell on the phone and discussed the matter with him angerily and subsequently neither continued the medication nor continued treatment with Dr. Worrell. The advised psychometric testing was never undertaken. Claimant stated that such bouts of anger were not characteristic of his preinjury behavior. On October 25, 1985, Dr. Worrell reported that he had last seen claimant in July . Claimant subsequently telephoned the doctor because claimant was upset with his evaluation and the BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 4 Imipramine prescribed. The doctor opined that this was a part of claimant's problem in that his personality had changed and he had difficulty getting along with people. He opined that claimant would be able to return to some type of supervised functional employment. He noted that claimant had no focal or neurological deficit involving the motor system, but deficits mainly in his ability to cooperate and deal with people and a lack of energy and enthusiasm. On July 7, 1986, Dr. Worrell opined claimant had permanent impairment of ten to fifteen percent of the body as a whole considering his mental deficits. In his deposition, Dr. Worrell described the frontal lobe of the brain as controlling personality and behavior, interest and drive (in life and jobs) ability to concentrate and attitude toward and ability go get along with people and [sic] the person's environment. He characterized frontal lobe syndrome as a personality disorder brought on by organic changes in frontal lobe. The doctor opined that in July 1985 claimant could work under modest supervision where someone monitored his activities explaining that persons with frontal lobe syndrome have a decreased ability to concentrate and very often cannot make the connection from a completed task to the next task without direction. The doctor opined that chronic headaches over an extended time are common after head injuries and that claimant's headaches and nausea are part of a post injury problem not specifically related to the frontal lobe. The doctor opined that after reviewing selected portions of claimant's deposition, he felt claimant's frontal brain syndrome had improved significantly such that claimant now had no impairment on his ability to earn a living. The doctor stated he based that opinion on claimant's stated ability to find and work at a job which he seemed to enjoy. On January 22, 1986, Dr. Delbridge stated that claimant had good flexion, good dorsiflexion of the left wrist but limitation of supination by fifteen degrees, a two percent impairment of the upper extremity; pronation of thirty degrees, a loss of fifty degrees, an eight percent impairment of the upper extremity, and that as a result his overall impairment of his left upper extremity was ten percent. He opined that other than claimant's headaches, occasional feeling of nausea, and some aching in his neck, claimant did not have appreciable permanency with regards his neck and head injuries. In his deposition, Dr. Delbridge indicated that as a result of Dr. Worrell's consultation and his own observations, he suggested claimant not climb ladders as he might fall given his dizziness, headaches, and his nausea symptoms. He further opined that he believed that claimant's head problems were also a result of his work injury. The doctor agreed, however, that he has not specifically asked claimant whether claimant has had headaches before the injury. Dr. Delbridge agreed that claimant's left wrist was his nondominant side, but stated that because at times the dominance of one hand is not complete, he did not reduce the impairment rating for nondominance even though the AMA Guides do so. Claimant is a high school graduate who spent three years in the navy where he received eight weeks of training as a machinist mate. Subsequent to to his military discharge, he worked as a BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 5 laborer, a truck driver, and a route salesperson before becoming a construction union member. He earned between $5.50 and $6.00 per hour generally in his nonconstruction jobs and earned between $8.60 and $10.25 per hour in his construction jobs. Claimant had been working for Jens Olesen & Sons Construction approximately two years when injured and was then earning $9.00 per hour. He was the low boy operator but also filled in where needed on general laboring and concrete work. Claimant characterized himself as in excellent physical condition prior to his injury and having no wrist, neck or back problems. He indicated that he did not return to construction work because he could not use air tools, could not lift as much, could not put as much weight on his wrist, and was sore on side to side motion. Claimant moved his family to Arizona in December 1985. He reported that prior to doing so, he had talked to persons about the possibility of finding other work in Iowa and believed there were no opportunities here. He testified that he had a "motivation problem" when he initially arrived in Arizona and that he attempted to start looking for work but was unable to "get going" until he finally did so at his wife's insistence. Claimant reported that he had no difficulties with motivation prior to his injury. He reported that he had difficulty finding a job within his limited training. In March 1986, claimant began work preparing road sealer machines for painting at which he earned $5.25 per hour. Claimant reported that he could handle the minimal physical demands of this position but for his headaches which at times were brought on by the heat, overexertion, and bending forward required on the job. Claimant left that position to become a salesperson in the buildings materials department of a building supply store. Claimant remains working there. His salary has increased from $6.50 per hour when he began work in Summer 1986 to $7.15 per hour at time of hearing. Claimant anticipated an increase to $7.50 per hour following his review. Claimant reported that the job holds a possibility of advancing to department manager and then store assistant manager with subsequent increases in hourly wage. He eventually would need to increase his hours to more than the forty hours he is currently working per week. He is uncertain he could handle those hours. Claimant characterized himself as not unhappy with his job but simply wishing he could do better. He reported he had applied for other sales jobs in like fields. Claimant holds an Arizona class 4 chauffeurs license and had applied for jobs as a forklift operator and other sales work which he stated would pay between $11.00 and $12.00 per hour, but had not been hired. Claimant expressed his belief that because of his good background in all fields of construction but for his injury, he would eventually have become a foreman or supervisor receiving pay of approximately $12 to $15 per hour. Claimant reported that he continues to have a problem with becoming angry and has "blown up" at work approximately a half a dozen times such that his supervisors have had to talk to him about the problem. He reported that he continues to have headaches but that he generally is able to leave the floor and go to the break room when these become severe. BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 6 Claimant reported that he no longer has the energy or stamina to play softball, basketball, football or bicycle as he had prior to his injury. He reported that Dr. Delbridge advised him not to play sports involving his left wrist. Kathleen Bawek, claimant's wife of five years, substantiated claimant's testimony regarding changes in his personality and physical condition following his work injury. She indicated that claimant has headaches more frequently after a busy stressful workday. Mrs. Bawek works as a grocery cashier approximately fifteen to twenty-three hours per week. Claimant cares for the couple's children, ages four and eight, when his work schedule is such that he is off work while his wife is working. Claimant's appearance throughout hearing was very flat; his voice was a monotone; and he generally appeared to lack enthusiasm and energy. The balance of the evidence was reviewed and considered in the disposition of this matter. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of October 5, 1984 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 7 possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Agency may disregard unconroverted medical testimony; it may do so only after stating substantial reasons for not deferring to the evidence, however. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An expert's opinion based on an incomplete history is not necessarily binding on the commissioner but must be weighed with other facts and circumstances. Musselman, 261 Iowa 352, 360, 154 N.W.2d 128, 133. Permanent means for an indefinite and undeterminable period. Wallace v. Brotherhood of Locomotive Firemen and Enginemen, 230 Iowa 1127, 1130, 300 N.W. 322, 324 (1941), citing Garen v. New England Mutual Life Insurance Company, 218 Iowa 1094, 1104, 254 N.W. 287, 292 (1934). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Our initial concern is whether a causal connection exists between claimant's injury and his asserted disability. The parties stipulate claimant has a [causally related] left wrist injury. They dispute whether claimant has a head injury causally related to his work injury. The asserted head problem consists of chronic headache and nausea and partial frontal brain syndrome. Both Dr. Delbridge and Dr. Worrell believe the headache and nausea are post injury sequalae not uncommon following head trauma. That characterization is accepted and provides the necessary expert opinion establishing causal relationship as regards those problems. Dr. Worrell, after examining claimant, initially felt claimant's personality changes and related symptoms following his injury were suggestive of partial frontal lobe syndrome. In July 1986, he opined claimant's mental deficits produced a permanent partial impairment often percent of the body as a whole. Those remarks of the doctor when coupled with his examination notes and claimant and his wife's testimony at hearing are sufficient to BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 8 establish that claimant's work injury produced at least a temporary partial frontal brain syndrome. Dr. Worrell testified in his deposition, however, that after reading portions of claimant's deposition, but not actually reexamining claimant, he believed claimant's syndrome had improved significantly and that claimant now has no impairment of his ability to handle employment on account of that syndrome. We reject the doctor's latter opinion, however. The doctor did not personally reexamine claimant. Claimant's effect, vocal tone, and the substance of his testimony at hearing were consistent with continuing behavioral difficulties such as the doctor earlier had associated with frontal brain syndrome. Furthermore, the doctor's December 1986 opinion merely stated that claimant was no longer impaired as to his ability to earn a living. While we do not reach the issue of whether the doctor's opinion invades the province of the commissioner by improperly assessing industrial disability and not functional impairment, we believe the doctor's opinion is based on an inaccurate medical history and fails for that reason. Claimant testified at hearing that he continues to have problems with anger and that he has lost his temper a number of times at work such that his supervisors have spoken to him concerning the problem. That fact was not elicited in claimant's deposition testimony which Dr. Worrell reviewed. Sudden bouts of temper sufficient to raise concern among an employee's supervisors may well represent a serious impairment of an employee's ability to earn a living. Claimant is found to have continuing partial frontal brain syndrome symptoms sufficient to impair his ability to earn a living. While perhaps decreasing in severity, these have continued since his injury and the period at which they will terminate is indeterminable. Claimant's partial frontal brain syndrome is found to be a permanent condition, which like his headaches and nausea, is causally related to his work injury. and extends his injury to the body as a whole. Dr. Worrell opined claimant's frontal brain syndrome had improved significantly. Claimant was able to motivate himself at his wife's behest to seek and obtain employment. Claimant's job requires him to interact with individuals and to do some inventory and other mathematical calculations. He has been able to secure a wage increase since beginning this employment. These facts suggest claimant's syndrome symptoms have improved although still existing. For those reasons, we believe claimant's permanent partial impairment from the syndrome more nearly approximates the lower range Dr. Worrell suggested in July 1985. Claimant is found to have a ten percent permanent partial impairment of the body as a whole related to his partial frontal brain syndrome. Dr. Delbridge's opinion of ten percent permanent partial impairment of the upper extremity on account of claimant's wrist injury is accepted per the parties' stipulation and as better supported by the evidence overall than is Dr. Cameron's opinion regarding the wrist permanency. A ten percent impairment of the upper extremity equals six percent permanent partial impairment of the body as a whole under the AMA Guides. A six percent body as a whole impairment and a ten percent body as a whole impairment equal a 15 percent body as a whole impairment under the AMA Guides combined values chart. Additionally, claimant has impairment not previously assessed on account of his injury related chronic headaches and nausea. These, with his numerically assessed permanencies, are such that claimant's overall permanent partial impairment can be characterized as BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 9 moderate to mildly severe. Having already considered the extent of claimant's permanent partial impairment we now reach the question of the nature and extent of his disability. An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man.O Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d. 251, 257 (1963). In Parr v. Nash Finch Co., (Appeal decision, October 31, 1980) the Industrial Commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden, 288 N.W.2d 181. Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. Id. Claimant is a younger worker and a high school graduate. His experience is primarily as a heavy laborer and equipment BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 10 operator in the construction industry. Claimant's wrist condition and, to a lesser extent, his chronic headache and nausea preclude his returning to those fields. Claimant has transferable skills in that he has been able.to use his knowledge of building materials to obtain his current position as a building materials salesperson. At time of hearing, claimant appears to be having some success at that position and had obtained a raise. His current salary, even if he were to receive the further raise he anticipated at hearing, still lags behind his salary when injured, however. Further, claimant's testimony indicated that his partial frontal brain syndrome is causing him difficulties with the interpersonal relations required in his sales position. Those difficulties, were they to continue, could seriously jeopardize claimant's ability to earn a livelihood. They could well prevent him from advancing further with his present company; they could even result in his dismissal by his present employer. (The latter possibly is more remote given claimant's past favorable employment reviews. Unfortunately, we are not aware of whether reviews occurred before or after claimant's episodes of anger at work.) Claimant's motivation to work is good given the effects of his partial frontal brain syndrome. He has accepted his situation and appears genuinely interested in mastering the new skills required in his current position. If his brain syndrome difficulties do not create greater problems for him, we anticipate he will at least be able to handle his current employment. We find the possibility that he will advance to supervisory roles overall too speculative to consider but note that claimant will generally be competing for managerial positions with individuals not having partial frontal brain syndrome. We find that claimant has sustained a 25 percent loss of earning capacity based on his present circumstances. Should claimant's job situation change or should his partial brain syndrome change this finding, of course, would be ripe for review-reopening. Defendants contend claimant is entitled to healing period benefits only through November 27, 1985; claimant until his work return in March 1986. Little evidence actually supporting either position was presented at hearing. Healing period ends upon a return to work, as return to substantially similar work or at the point of maximum medical recovery. Claimant has not returned to work or returned to substantially similar work. It is difficult to assess medical recovery from claimant's partial brain syndrome. We believe that the ability to acquire and sustain employment beyond the supervised employment Dr. Worrell advised in July 1985 is evidence of a return to more normal functioning despite that condition's continuing existence. We adopt claimant's position as to termination of claimant's healing period. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant sustained an injury which arose out of and in the course of his employment on October 5, 1984 when he fell from the top rung of an eight foot stepladder onto a concrete floor BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 11 hitting his head and wrist on the floor. Claimant sustained a two inch laceration above the left eyebrow and minor abrasions to the middle forehead. Claimant sustained a commuted Colle's fracture of the articular surface of the radius and ulnar stylois tip of the left wrist. Claimant experienced stiffness and loss of motion in the neck as well as headache and nausea. Claimant's wrist was cast. Claimant underwent physical therapy for his wrist and neck. Claimant continues to have weakness and lost range of motion in his wrist. Claimant has intermittent neck stiffness and chronic headache and nausea. Claimant experienced symptoms of irritability, personality change, lack of concentration, forgetfulness, and loss of energy and drive following his injury. Claimant has a moderate to mildly severe permanent partial impairment from his wrist condition and his headache and nausea, and from a partial frontal brain syndrome as a result of his injury. BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 12 Claimant is 32 years old and a high school graduate. Claimant's prior work experience is largely in the construction trades. Claimant cannot return to construction work on account of his work injury. At his wife's insistence, claimant was able to seek and find employment in March 1986. Claimant has transferable skills which he applies in his present position as a building supplies salesperson. Claimant has bouts of anger as a result of his partial frontal brain syndrome and has received a number of reprimands from work supervisors after these have occurred at work. Claimant's partial brain syndrome could affect his continued ability to function in his current employment. Claimant is well motivated to work given the effects of his partial frontal brain syndrome. Claimant has a 25 percent loss of earning capacity. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has established that his October 5, 1984 injury is the cause of the disability on which he now bases his claim. Claimant is entitled to permanent partial disability resulting from his October 5, 1984 injury of twenty-five percent (25%). Claimant is entitled to further healing period benefits from November 28, 1985 to the date he actually returned to work in March 1986. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for one hundred twenty-five (125) weeks at the rate of two hundred thirty-two and 52/100 dollars ($232.52) with those payments to commence on the date he actually returned to work in March 1986. Defendants pay claimant additional healing period benefits at the rate of two hundred thirty-two and 52/100 dollars ($232.52) from November 28, 1985 to the date he actually returned to work in March 1986. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to section 85.30. BAWEK V. JENS OLESEN & SONS CONSTRUCTION CO. Page 13 Defendants pay costs pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. Defendants file claim activity reports as required by the agency. Signed and filed this 21st day of January, 1987. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. John S. Pieters Attorney at Law 2307 Falls Avenue, Suite 1 Waterloo, Iowa 50701 Mr. John M. Wharton Attorney at Law Suite 300, Fleming Bldg. 218 Sixth Avenue Des Moines, Iowa 50309 1108; 1803.1; 2204 Filed 1-21-87 Helen Jean Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER STEVEN D. BAWEK, Claimant, VS. File No. 776636 JENS OLESEN & SONS CONSTRUCTION CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and IOWA CONTRACTORS WORKERS' COMPENSATION GROUP, Insurance Carrier, Defendants. 1108; 1803.1; 2204 Claimant with stipulated wrist injury established causal relationship between work injury in which he fell from top of stepladder onto concrete floor and partial brain syndrome, headaches and nausea, uncontroverted medical testimony that claimant no longer was permanently impaired as a result of partial frontal brain syndrome rejected. Doctor's opinion based on reading parts of claimant's deposition only and then concluding claimant could sustain employment. Claimant's affect at hearing was consistent with continuing partial frontal brain syndrome symptoms. Claimant testified he had episodes of anger at work for which he had been reprimanded. Twenty-five percent permanent partial disability awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CAROLYN DEAN, Claimant, File No. 776649 vs. A R B I T R A T I 0 N ST. JOSEPH MERCY HOSPITAL, D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Carolyn Dean against her former employer, St. Joseph Mercy Hospital. The case was heard and fully submitted on January 6, 1988 at Mason City, Iowa. The record in this proceeding consists of testimony from Carolyn Dean, Maxine Miller, Wendy Hegtvedt, Stella Jensen, Bil Cooper and Roger Marquardt. The record also contains claimant's exhibits 1 through 44 and defendant's exhibits A through F. ISSUES The issues presented by the parties for determination are the applicable rate of compensation; the duration of claimant's entitlement to compensation for healing period; and, the extent of industrial disability that the claimant sustained as a result of the injuries which arose out of and in the course of her employment on September 27, 1984. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Carolyn Dean is 38 years of age. she is married, but is presently separated from her husband. She has a teenage son who resides with her. Carolyn Dean testified that she dropped out of high school half way through the eleventh grade and has only one test remaining in order to complete her GED. At the present time, she operates a licensed day care center in her home which she stated provides her with an income that varies from $90-$150 per week. Claimant testified that she enjoys performing child care services and plans to continue performing that type of work indefinitely. Claimant testified that, however, because of the problems with her left arm and shoulder, she restricts the age of children for whom she provides care to those who are at least two years of age. Claimant's work history includes work as a waitress, bartender, cashier, pizza maker, housekeeper and the child care which she presently performs. Carolyn Dean has been diabetic since her youth and has experienced a number of prior and subsequent health problems. Those conditions which are deemed to be most remarkable include fractures of her left clavicle, left radius and injury to her left elbow that occurred in July, 1984 at the hands of her husband. Claimant also fractured her right wrist in a fall that occurred in March, 1985. Claimant commenced her employment with St. Joseph Mercy Hospital as a part-time housekeeper on March 10, 1980. She acquired full-time status one to one and one-half years later. Claimant testified that the work of a housekeeper involves some light work, some medium work and some heavy work. She felt that she would be unable to perform the job in her current condition because she is unable to move and use her left arm as she had done prior to the injury. Claimant stated that the work exceeds the restrictions recommended by Sterling J. Laaveg, M.D. Claimant testified that, on September 27, 1984, she had stripped a bed in a patient room. She stated that, while flipping back the mattress, she felt a pop or crack in her shoulder, that it started to ache and throb and that her hand and finger went numb. Claimant reported the incident to her supervisor and an incident report was completed (exhibit 43). Claimant initially received her medical treatment under the direction of Wayne Janda, M.D., an orthopaedic surgeon. DEAN V. ST JOSEPH MERCY HOSPITAL PAGE 3 conservative treatment in the nature of medication and physiotherapy were employed (exhibit 3, pages 2-7; exhibit 4). In January, 1985, claimant elected to receive treatment from Sterling J. Laaveg, M.D. Additional conservative treatment was employed until June 6, 1985 when claimant underwent arthroscopic surgery on her left shoulder. The glenoid labrum of the shoulder was found to be irregular, loose, floppy and to have small degenerative tears which were debrided. (exhibits 5 and 12). On December 4, 1985, Dr. Laaveg reported that claimant had reached maximum healing concerning her left shoulder, but that she had residual pain, discomfort and limitation of motion. Dr. Laaveg assigned an impairment rating of twelve percent of the left shoulder and upper extremity which he equated to a seven percent impairment of the whole person (exhibit 18). Dr. Laaveg assigned activity restrictions for claimant's left arm which included avoidance of all lifting of weights greater than 20 pounds and of reaching above shoulder level. He indicated that she could occasionally lift weights up to 20 pounds, push, pull, climb, rotate her head and work at heights. He imposed less restrictions for other activities (exhibit 17). Claimant was provided with services from Bil Cooper, a job placement specialist. Through Cooper's efforts, claimant was placed in a position as a part-time cashier at a Hy-Vee store where she earned $3.40 per hour and worked as much as 30 hours per week. Claimant apparently performed the job to the satisfaction of the employer, but aggravated her shoulder and discontinued the employment. Claimant has declined to apply for a bartender job at a local restaurant and lounge where she had previously been employed due to influence from her husband. Claimant has applied for some other positions, but was not DEAN V. ST JOSEPH MERCY HOSPITAL PAGE 4 offered employment. Roger Marquardt, a certified vocational rehabilitation consultant, evaluated claimant and determined that the Hy-Vee job was an appropriate position for the claimant. Additionally, Marquardt indicated that claimant could perform a number of other occupations which fall in the category of unskilled or select semi-skilled employment which is either light or sedentary in exertion requirements. Marquardt indicated that such jobs do exist which permit the primary use of the right dominant arm. Positions Marquardt listed were in the nature of cashier, clerk and general retail sales. Marquardt indicated that median wages for such positions were in the range of $3.75 per hour to $6.00 per hour, but that they varied depending upon the position and the skills involved. From the data Marquardt provided, it would appear that the wage ranges in the Mason City, Iowa area for most of the clerical, cashier and general sales positions range from approximately $3.75 per hour to $4.00 per hour. The only exception was a bank teller position which Marquardt felt would pay approximately $6.00 per hour. Marquardt testified that there is a stable job market for persons such as claimant who are, for all practical purposes, one-armed workers. Marquardt also indicated that many of the jobs which claimant could obtain would be part-time, particularly at entry level and that the entry level earnings would be lower than median earnings. Marquardt made no specific search in the Mason City area for positions that would actually be available to a worker who had full use of only one arm. DEAN V. ST JOSEPH MERCY HOSPITAL PAGE 5 Child care is a career field which appears to be appropriate according to both Cooper and Marquardt. Claimant's physical impairment has been evaluated by Sinesio Misol, M.D., who found claimant to have a twelve percent impairment of the body as a whole (exhibit 29). Claimant was also evaluated by John R. Walker, M.D., who found claimant to have a 40% impairment of the body as a whole (exhibit 21). Claimant has continued to have problems with her shoulder. She was hospitalized for a shoulder manipulation and injections on March 19, 1987 (exhibit 25). The hospitalization caused her to miss one week from her child care activities. Shortly prior to hearing, Dr. Laaveg modified his restrictions to provide that claimant should not lift more than five pounds with her left arm and that she should not perform any job which involved repetitive activity of her left arm or upper extremity (exhibit 38). Claimant continues to have pain in her left upper arm, shoulder, neck and a loss of strength and range of motion. APPLICABLE LAW AND ANALYSIS The.issue of rate of compensation falls under Iowa Code section 85.36. The first unnumbered paragraph states that: Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured .... Stella Jensen, claimant's supervisor, testified that claimant would normally work 40 hours per week. Claimant testified that, at the time of injury, she was earning $4.84 per hour. Exhibit C, at page 2, shows claimant's work attendance while exhibit D shows her gross wages. It is noted that claimant was paid biweekly and that the week for which earnings were paid appears to have run from Monday through Sunday. A review of the attendance report appears to indicate that a normal work week averaged five work days, but that in some weeks claimant worked six days and had one day off while in other, she worked only four days and had three days off. It is therefore found that DEAN V. ST JOSEPH MERCY HOSPITAL PAGE 6 claimant's normal work week was scheduled for 80 hours per week. Claimant's rate of pay is not, however, apparent from the records in evidence. A rate of $4.84 per hour over a period of two work weeks, 80 hours, should total $387.20. Claimant's gross wages vary but appear to fall for the most part within a range of $352-$366 per week. There are a few weeks which are both higher and lower than the range wherein most seem to fall. There are few instances where the gross wages for any two-week period are duplicated. Apparently, claimant did not work precisely the same number of hours each pay period. It has been held that weeks which are short due to vacation, sickness or other unpaid absence should not be used in computing the rate of compensation if such differ from the customary hours for the full pay period. Lewis v. Aalf's Manufacturing Co., I Iowa Industrial Commissioner Report, 206, 207 (App. Decn. 1980); Schotanus v. Command Hydraulics, Inc., I Iowa Industrial Commissioner Report, 294, 298-99 (1981). A review of claimant's attendance report and comparison with the gross wages shows it difficult to determine which weeks are truly representative. In early 1984, claimant had been off work for an extended period of time. Upon review of exhibits C and D it is determined that the wages paid on September 26, 1984, September 12, 1984, August 1, 1984, and July 18, 1984 are fairly representative of claimant's actual work and earnings. The period comprises eight weeks and shows total gross wages of $1,463.29 or $182.91 per week. When applied to the appropriate benefit schedule considering claimant to be married with three exemptions, the rate of compensation is therefore $125.72 per week. Claimant seeks compensation for healing period under the provisions of Iowa Code section 85.34(l). The healing period commences on the date of injury and runs until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to that in which the employee was engaged at the time of injury, whichever occurs first. Claimant has not returned to work and it appears that claimant never will become medically capable of engaging in employment substantially similar to that in which she was engaged at the time of injury. Claimant was paid 61 4/7 weeks of compensation for healing period running from the date of injury until December 2, 1985 when Dr. Laaveg released her to return to work and provided his initial rating of permanent partial disability (exhibits 5 and 18). It should be noted that the rate at which she was paid was underpaid by the amount of $8.61 per week. Claimant then entered into her child care business shortly after her release from Dr. Laaveg. She continued to operate that business until the time she was hospitalized for shoulder manipulation. Claimant testified that shoulder manipulation caused her to miss one week from her self-employed business of child care. Accordingly, claimant is entitled to one additional week of compensation for healing period payable at the rate of $125.72 per week commencing March 19, 1987. It is understood that the claimant aggravated her shoulder while performing part-time work at Hy-Vee. When an industrial injury leaves an individual with a weakness that subjects them to further risk of DEAN V. ST JOSEPH MERCY HOSPITAL PAGE 7 injury or aggravation, those facts are to be considered in determining the degree of permanent disability. They do not make every subsequent problem that the individual has with the injured body part something which is proximately caused by the original injury to the extent that additional healing period or temporary total disability compensation is always payable. further, the aggravation did not interrupt her child care business and claimant was not totally disabled. Claimant's injury is to her shoulder. It is not limited to her arm. The physical abnormalities found to exist are situated on the body side of the shoulder joint. Accordingly, the disability should be evaluated as a disability to the body as a whole. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935 as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County , 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Claimant is not a high school graduate. She does not have a GED, although it appears likely that she will be able to obtain her GED if she makes a bona fide effort. At hearing, claimant appeared to be of average intelligence and emotionally stable. She appeared to be somewhat unduly influenced by her husband. Nevertheless, the physicians have indicated that she cannot resume the type of employment she performed with St. Joseph Mercy Hospital. Her physical restrictions make it unlikely that she can perform many of the occupations which she had previously performed. At the time of injury, claimant was self-employed, full-time, earning somewhere in the range of $4.75 per hour. The DEAN V. ST JOSEPH MERCY HOSPITAL PAGE 8 employment opportunities which have been identified by the vocational consultants appear to provide work that is at or slightly above the minimum wage range for entry level purposes. Most of the jobs identified appear to be part-time employment, at least for a considerable amount of time before the claimant could move to full-time employment. The injury at St. Joseph Mercy Hospital has placed her in the position of reentering the work force at entry level, rather than remaining at the level of experience and seniority which she had acquired with St. Joseph Mercy Hospital. Claimant's current level of employment providing child care is probably not the best level of earnings which she could accomplish, but it is likewise not an unreasonable occupational choice. When all the material factors of industrial disability are considered, it is determined that claimant has sustained a 30% permanent partial disability as a result of the injuries she sustained on September 27, 1984. The compensation is payable commencing on December 3, 1985 and should be interrupted for the one week of healing period payable commencing March 17, 1987. Compensation for healing period and permanent partial disability resulting from the same injury are not payable simultaneously. FINDINGS OF FACT 1. On September 27, 19.84, Carolyn Dean was employed as a housekeeper at St. Joseph Mercy Hospital in Mason City, Iowa earning approximately $4.75 per hour. 2. Carolyn Dean injured her left shoulder on September 27, 1984 while lifting a mattress as part of the duties of her employment. 3. Following the injury, claimant was medically incapable of performing work in employment substantially similar to that she performed at the time of injury from the date of injury until December 2, 1985 when Dr. Laaveg released claimant and provided a permanent impairment rating. It was at that time that she reached the point that it was medically indicated that further significant improvement from the injury was not anticipated. 4. Claimant was subsequently disabled when she was hospitalized for medical treatment on March 17, 1987. The disability extended for one week. 5. The times, other than the week commencing in March, 1987, when Dr. Laaveg recommended that claimant not perform work for the Hy-Vee store were primarily related to the activities in which she engaged at the Hy-Vee store rather than the injury of September 27, 1984. The fact that the Hy-Vee employment aggravated claimant's condition is evidence of the degree of disability that was produced by the 1984 injury. 6. Claimant's average weekly earnings are $182.91. 7. Claimant is a credible witness with regard to her description of her complaints and limitations. 8. The assessment of this case made by Dr. Laaveg is adopted as correct where it conflicts with the assessments made by other medical professionals. DEAN V. ST JOSEPH MERCY HOSPITAL PAGE 9 9. Claimant has sustained a 30% loss of earning capacity as a result of the injuries she sustained on September 27, 1984. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury claimant sustained to her left shoulder on September 27, 1984 arose out of and in the course of her employment with St. Joseph Mercy Hospital. 3. The injury claimant sustained to her left shoulder on September 27, 1984 was a proximate cause of the disability that currently afflicts claimant with regard to her left shoulder and left upper extremity. 4. Claimant's rate of compensation is $125.72 per week. Where 13 recent weeks of employment earnings are not available which show the earnings which the employee would have earned had the employee worked the customary hours for the full pay period in which the employee was injured as regularly required by the employer, a lesser number of weeks may be utilized if those weeks are fairly representative of the earnings the employee would have been entitled to had the employee worked the customary hours for the entire pay period in which the employee was injured. 5. Claimant's entitlement to compensation for healing period runs from September 27, 1984 through December 2, 1985, a period of 61 4/7 weeks. Claimant is also entitled to one additional weekly of compensation for healing period commencing March 17, 1987. 6. Claimant has a 30% permanent partial disability, when the same is evaluated industrially, which was proximately caused by the injuries she sustained on September 27, 1984. 7. The fact of susceptibility to future injury is a factor to be considered in determining the degree of industrial disability. ORDER IT IS THEREFORE ORDERED that defendant pay claimant sixty-one and four-sevenths (61 4/7) weeks of compensation for healing period at the rate of one hundred twenty-five and 72/100 dollars ($125.72) per week commencing September 27, 1984 and one (1 week of compensation for healing period at the rate of one hundred twenty-five and 72/100 dollars ($125.72) per week commencing March 17, 1987. IT IS FURTHER ORDERED that defendant pay claimant one hundred fifty (150) weeks of compensation for permanent partial disability at the rate of one hundred twenty-five and 72/100 dollars ($125.72) per week payable commencing December 3, 1985 and interrupted by the one week of healing period which commences March 17, 1987. DEAN V. ST JOSEPH MERCY HOSPITAL PAGE 10 IT IS FURTHER ORDERED that defendant receive credit for all amounts previously paid and pay any and all past due and owing amounts in a lump sum together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendant file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of October, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey III Attorney at Law 214 North Adams P.O. Box 679 Mason City, Iowa 50401 Mr. Marvin E. Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 1802, 1803, 3001 Filed October 27, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER CAROLYN DEAN, Claimant, File No. 776649 vs. A R B I T R A T I 0 N ST. JOSEPH MERCY HOSPITAL, D E C I S I 0 N Employer, Self-Insured, Defendant. 1802, 1803, 3001 The claimant had been off work for a substantial period of time prior to the injury due to a nonoccupational illness. She had less than 13 weeks of work with the customary number of hours. It was held that the rate may be computed based upon a lesser number of weeks than 13 when the weeks are sufficient to show that the average weekly earnings are fairly representative of what the claimant would have normally earned had she been gainfully employed without absences for illness. It was held that where an injury produces permanent partial disability, which makes the claimant susceptible to further injury, that when additional injury occurs due primarily to some identifiable aggravating circumstance or event, it is that circumstance or event which is the proximate cause of the additional period of disability, rather than the original injury. The fact of susceptibility to future injury is a factor to be considered in determining the degree of industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GLENN PATTERSON, Claimant, vs. File No. 776693 TAMA PACK, A R B I T R A T I O N Employer, D E C I S I O N and CRAWFORD & COMPANY, Insurance Carrier, Defendants. On August 24, 1986, at 1:00 p.m., the above captioned matter came on for arbitration hearing as previously assigned by telephone pre-hearing conference of March 31, 1988, conducted by Deputy Industrial Commissioner, T. J. McSweeney, wherein claimant participated on his own behalf and Dorothy L. Kelley participated for the defendants. The file reflects that a Hearing Assignment Order filed April 1, 1988, was duly mailed by U. S. Postal Service to Glenn Patterson, acting pro se, to his last known address of Route 1, Gilman, Iowa, 50106 and to Dorothy L. Kelley, 1000 Des Moines Building, Des Moines, Iowa, 50309. At the appointed time of hearing on August 24, 1988, defendants appeared with counsel, however, claimant failed to appear. A search for the claimant was made. The undersigned deputy industrial commissioner telephoned Mr. Patterson's residence and place of employment without successfully reaching the claimant. No messages from Mr. Patterson concerning his whereabouts were received. At 1:30 p.m., a Motion to Dismiss for failure to appear and for Default Judgment was made by the defendants because of claimant's failure to appear and present evidence to carry his burden of proof that his injury arose out of and in the course of employment and collateral issues. Claimant has the burden of 1)roving by a preponderance of the evidence that he received an injury on March 28, 1984 which arose out of and in the course of his employment. McDowell v.Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). It is found that claimant has failed to carry his burden of proof. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this PATTERSON V. TAMA PACK PAGE 2 proceeding. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 1st day of September, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Glenn Patterson Route 1 Gilman, Iowa 50106 CERTIFIED AND REGULAR MAIL Ms. Dorothy L. Kelley Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309 1402.20, 1402.30 Filed September 1, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER GLENN PATTERSON, Claimant, vs. File No. 776693 TAMA PACK, A R B I T R A T I O N Employer, D E C I S I O N and CRAWFORD & COMPANY, Insurance Carrier, Defendants. 1402.20, 1402.30 Claimant failed to carry his burden of establishing a compensable injury due to his failure to appear to present evidence in support of his allegation of an injury arising out of and in the course of his employment. Claimant take nothing from this proceeding. Page 1 before the iowa industrial commissioner ____________________________________________________________ : NANCY PATMAN, : : Claimant, : : vs. : : File No. 776700 GLENWOOD STATE HOSPITAL, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed June 27, 1990, is affirmed and is adopted as the final agency action in this case, with the following additional analysis. On September 22, 1986, the parties entered into an agreement for settlement. The agreement for settlement was based upon claimant's physical condition at the time of the settlement. James P. O'Hara, M.D., claimant's treating physician opined that claimant could anticipate the development of arthritis as a result of her right ankle injury. Basing an award on future possible developments of claimant's present condition would be engaging in speculation. Chapter 85, Code of Iowa, contemplates a review-reopening proceeding should claimant's condition deteriorate in the future. Schmitz v. Ahrens Construction Company, Appeal Decision, June 2, 1989, file number 834034. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. R. Ronald Pogge Page 2 Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 9999 Filed November 18, 1991 BYRON K. ORTON MGT before the iowa industrial commissioner ____________________________________________________________ : NANCY PATMAN, : : Claimant, : : vs. : : File No. 776700 GLENWOOD STATE HOSPITAL, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed June 27, 1990, with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER NANCY PATMAN, Claimant, File No. 776700 VS. R E V I E W - GLENWOOD STATE HOSPITAL, R E 0 P E N I N G Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in review-reopening from an agreement for settlement. The case was heard and fully submitted at Council Bluffs, Iowa on June 5, 1990. The record in the proceeding consists of testimony from Nancy Patman, claimant's exhibits 1, 2, 3a, 3b, 3c, 3d and 4, and defendants' exhibits B, C, E and F. Claimant seeks additional compensation for permanent partial disability for her right leg. The issues presented for determination are whether there has been a change of condition sufficient to warrant reconsideration of the degree of disability. FINDINGS OF FACT Nancy Patman is a former employee of the Glenwood State Hospital where she was a resident treatment worker. She fractured her right ankle while taking clients of the hospital roller skating on September 27, 1984. Her treating orthopaedic surgeon was James P. O'Hara, M.D., of Omaha, Nebraska. Open reduction and screw fixation of the right ankle was performed. After a subsequent injury to the injury in 1985, the screws were removed. In a report dated January 6, 1986, Dr. O'Hara rated claimant as having a five percent impairment of the whole person due to the ankle injury. He anticipated that she would develop arthritis in the ankle because of the injury. Claimant was also evaluated by William R. Hamsa, Jr., M.D., another Omaha orthopaedic surgeon. Dr. Hamsa estimated that she had a 14 PATMAN v. GLENWOOD STATE HOSPITAL Page 2 percent disability of the foot which was equivalent to 10 percent of the leg which, in turn, was equivalent to 4 percent of the whole person. In his report, which is dated February 12, 1986, he noted evidence of early arthritic change in the ankle. An agreement for settlement was approved on September 24, 1986 which fixed claimant's disability at 13 percent of the right leg. At the time of the settlement, claimant was working as a resident treatment worker at the Glenwood Hospital. Claimant subsequently moved to Arizona where she worked for a medical supply company. The work required her to stand for 10 or 12 hours per day. She sought medical treatment in the state of Arizona and considered having the ankle fused in order to relieve her pain complaints. She subsequently returned to the state of Iowa where the consensus of the physicians who have evaluated her is that the fusion surgery should be a last resort. She performs a job which requires her to be on her feet eight hours per day, five days per week. She continues to have pain in her right ankle. Claimant testified that the pain is worse now than it was in 1986. She stated that the ankle has started to give way on occasion when she stands up after having been seated. On April 27, 1988, Dr. O'Hara reported that claimant has post-traumatic arthritis which is related to the original injury (exhibit 3b). On July 11, 1989, Dr. O'Hara reported that, because of the arthritis which has developed, he would rate her total impairment of the body as a whole at 10 percent (exhibit 3c). That rating is equivalent to 25 percent impairment of the leg (exhibit 4). On February 13, 1990, claimant was evaluated by Des Moines orthopaedic surgeon Timothy C. Fitzgibbons, M.D. In his report, he states that claimant has post-traumatic degenerative arthritis of the right ankle which was caused by the September 1984 incident. He agreed that the major portion of the ankle joint space was maintained and that he was reluctant to recommend fusion of the ankle. He rated claimant as having at least a 15 percent permanent impairment of the right leg (exhibit C). Claimant was evaluated on June 16, 1988 by Kenneth A. Johnson, M.D. Dr. Johnson felt that the joint space in the ankle was still good and that a surgical fusion was not advisable (exhibits B and F). On July 20, 1988, Dr. O'Hara reported that fusion was not advisable (exhibit B, page 3; exhibit 1, page 7). PATMAN v. GLENWOOD STATE HOSPITAL Page 3 On September 9, 1987, Thomas Bodnar, M.D., the orthopaedic surgeon who treated claimant in the state of Arizona, reported that the permanent partial disability of 13 percent is accurate for claimant's current condition and that, with a fusion, the rating would increase to 25 percent (exhibit 1, pages 15 and 16). It is found that the 13 percent impairment rating which was provided in 1986 represented the amount of impairment which existed at that time. It did not include any allowance for the development of future arthritic changes despite the fact that the physicians expected those changes to occur. The ratings currently from Drs. Fitzgibbons and O'Hara are 15 percent and 25 percent, respectively. It is found that the current degree of permanent impairment of claimant's right leg is 20 percent. There is no evidence in the record wherein any of the physicians give any indication regarding whether or not the amount of increase which has occurred was expected. It is found that an increase of impairment from 13 percent to 20 percent is an increase of 50 percent. An increase of 50 percent is found to be more than what would have normally been anticipated. CONCLUSIONS OF LAW In a review-reopening proceeding from an agreement for settlement, the claimant has the burden of establishing that there has been a substantial change of condition which was not anticipated at the time of the original agreement. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 1969). The change must be one which was not anticipated to occur and could not have been discovered through the exercise of reasonable diligence at the time of the settlement. Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978); Gosek v. Garmer & Stiles Co., 158 N.W.2d 731 (Iowa 1968); Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). It is concluded that, when the degree of impairment increases by 50 percent, such is sufficient to warrant reopening of the permanent partial disability award absent an evidentiary showing that an increase of that magnitude was expected at the time of the settlement. It is further concluded that claimant is entitled to recover compensation for a 20 percent loss of the right leg which entitles her to receive 44 weeks of compensation under the provisions of Iowa Code section 85.34(2)(o), less the 28.6 weeks paid under the agreement for settlement. The net award in this decision is therefore an additional 15.4 weeks of permanent partial disability compensation. Since thi is a review-reopening from an agreement for settlement, the additional compensation is payable commencing on the date of PATMAN v. GLENWOOD STATE HOSPITAL Page 4 the decision which awards it. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). In those cases where it is necessary to show a change of condition in order to obtain additional compensation and the employer has complied with a prior award or settlement, the doctrines of res judicata or preclusion relieve the employer from any obligation to pay additional compensation or interest thereon prior to the date of the award which increases the extent of disability. ORDER IT IS THEREFORE ORDERED that defendants pay claimant fifteen point four (15.4) weeks of compensation for permanent partial disability at the stipulated rate of one hundred fifty-six and 98/100 dollars ($156.98) per week payable commencing on the date of this decision. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of June, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. R. Ronald Pogge Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 BEFORE THE IOWA INDUSTRIAL COMMISSIONER NANCY PATMAN, Claimant, File No. 776700 vs. R E V I E W - GLENWOOD STATE HOSPITAL, R E O P E N I N G Employer, D E C I S I O N and F I L E D STATE OF IOWA, JUN 16 1989 Insurance Carrier, Defendant. IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Nancy Patman, claimant, against Glenwood State Hospital, an agency of the State of Iowa, employer who is self-insured, for the recovery of further workers' compensation benefits as a result of an injury on September 27, 1984. A prior Iowa Code section 86.13 compromise settlement for this injury was filed and approved by this agency on September 24, 1986. On October 12, 1988, a hearing was held on claimant's petition filed herein and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. No oral testimony was received during the hearing. The exhibits received into the evidence at the hearing are listed in the prehearing report except for claimant's deposition. Claimant's request to testify by this deposition in lieu of appearing at hearing was denied in a pretrial order by another deputy industrial commissioner. According to the prehearing report, the parties have stipulated with reference to the medical bills submitted by claimant that the fees charged for the services provided are fair and reasonable, but their causal connection to a work injury remain at issue. ISSUE The only issue submitted by the parties for determination in this proceeding concerns claimant's entitlement to requested medical benefits, including a proposed surgical procedure at the expense of the employer. STATEMENT OF FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement should be viewed as preliminary findings of fact. Claimant initially broke her right ankle while roller-skating with hospital residents in the course of her employment. She later reinjured her ankle when a hospital resident kicked her injured ankle before it was fully healed. Treatment of these injuries consisted of surgical reduction and the implantation and subsequent removal of pins during the healing process. In the settlement, claimant received weekly benefits for a 13 percent permanent partial disability to the right leg along with full healing period weekly benefits. It was noted by her treating orthopedics physician prior to this settlement, James O'Hara, M.D., that further development of traumatic arthritis in the ankle was anticipated including use of arthritis medication and possible physical therapy. However, Dr. O'Hara stated that he did not anticipate the need for further surgery. Claimant has now left state employment and moved to the State of Arizona. She currently is working in a microbiology laboratory. According to the medical reports, claimant has informed her doctors that she works long hours on her feet in this job. According to the medical reports, claimant sought treatment from a board certified orthopedic surgeon in Arizona, Thomas Bodnar, M.D., for complaints.of severe right ankle pain with activity in her work and during weather changes. Dr. Bodnar diagnosed that this pain was secondary to the development of traumatic arthritis as a result of the September 1984 work injury at Glenwood State Hospital. Initially, he prescribed rehabilitation exercises and nonsteroidal anti-inflammatory medication. However, later he began steroid injections on a regular basis. Dr. Bodnar testified in his deposition that claimant is getting some relief from these injections, but such injections place claimant at risk of serious infections. In November 1987, Dr. Bodnar "strongly recommended" an arthrodesis or surgical fusion of the right ankle to eliminate pain. He states that this would reduce claimant's range of motion and increase the functional impairment of the ankle. In his deposition, Dr. Bodnar appeared to back away from this strong recommendation and stated that the fusion surgery was only a surgical option for claimant, not necessarily his recommendation and that there are other alternatives preferable to fusion surgery such as use of an ankle brace or seeking other employment. He, however, believes that claimant is in the best position to judge the amount of pain she is experiencing and whether or not there should be a trade off of some loss of ankle motion for a reduction in the constant pain. Claimant has chosen to undergo the surgery. At the request of defendants, claimant was evaluated by Kenneth A. Johnson, another board certified orthopedic surgeon, who has extensive teaching and writing experience according to his curriculum vitae.. After his examination of claimant in June 1988, the doctor found evidence of some changes in claimant's ankle but recommended against using surgery. He stated that claimant should use a brace and anti-inflammatory medications. After a review of the written reports of Drs. Bodnar and Johnson, Dr. O'Hara, the original treating physician, agrees with Dr. Johnson and recommends against surgery. He suggests use of non-narcotic pain medication, nonsteroidal anti-inflammatory drugs and modification of her current job. However, Dr. O'Hara specifically stated that the treatment furnished to claimant by Dr. Bodnar was causally connected to the original work injury. APPLICABLE LAW AND ANALYSIS Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if claimant has paid those expenses. Otherwise, claimant is entitled to an order directing the responsible defendants to make such payments. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case sub judice, defendant has denied the causal connection of Dr. Bodnar's treatment to the work injury. However, defendant has no medical expert to support its position. The views of Dr. Bodnar and Dr. O'Hara are uncontroverted. Both opine that the current traumatic arthritis in the right ankle is work related. Defendant claims that the treatment by Dr. Bodnar was not authorized by them,and claimant is not entitled to reimbursement for these expenses under Iowa Code section 85.27 because employers have the right to chose the care. However, section 85.27 applies only to injuries compensable under Chapters 85 & 85A of the Code and obligates the employers to furnish reasonable medical care. This agency has held that it is inconsistent to deny liability and the obligation to furnish care on one hand and at the same time claim a right to chose the care. Kindhart v. Fort Des Moines Hotel, Vol. 1 Iowa Industrial Commissioner Decisions No. 3, 611 (Appeal Decision 1985); Barnhart v. MAQ, Incorporated, I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). Defendant in this case has throughout these proceedings denied the liability for any treatment of her current traumatic arthritis condition in the right ankle. It, likewise, to date has not offered any care for claimant's continuing symptoms. Their own expert, Dr. Johnson, suggested additional treatment modalities which also have not been offered or paid for by defendant.. For that reason and absent a future change in defendant's legal position on the issue of liability, defendant does not have the right to chose the medical care for such problems. Therefore, the expenses to date for the.treatment provided to claimant by Dr. Bodnar are fully compensable. It would appear as well that Dr. Bodnar, a board certified orthopedic surgeon, is the most appropriate physician to treat claimant in the future for her current complaints. He is already actively involved in claimant's treatment and she is satisfied with his treatment. It is in the best interest of claimant to remain with her current physician. No valid reason for a change of care has been offered by defendant. Therefore, continued care by Dr. Bodnar will be ordered. With reference to the surgery option offered by Dr. Bodnar to claimant, it is admitted that should defendant admit to liability in the future, defendant would have the right to monitor the care with a watchful eye toward preventing unreasonable and unnecessary procedures which would unduly add to costs. However, despite their disagreement as to what is the best treatment option for claimant to pursue, Dr. Johnson and Dr. O'Hara have not stated that the surgical option proposed by Dr. Bodnar would constitute unnecessary or unreasonable treatment. It is the claimant who must live with her choices and she should have that choice. The undersigned agrees that claimant should probably reevaluate her decision in light of the views of Dr. Johnson and Dr. O'Hara and especially the views of her own physician set forth in the deposition that there are preferable alternatives. But, as recognized by Dr. Johnson, the decision as to which course of treatment to follow is a matter between claimant and her doctor. Whether or not such surgery would increase disability is irrelevant when the procedure is designed to decrease claimant's constant pain. If claimant chooses to suffer additional loss of range of motion to eliminate pain and to remain on a job of her choosing, then she should have that option. It should be remembered that claimant did not chose to be injured at the work site and to be subjected to constant pain. Therefore, the surgical option will be provided to her. FINDINGS OF FACT 1. The medical expenses requested by claimant in the prehearing report are fair and reasonable treatment for the work injury. As expected by the original treating physician, Dr. O'Hara, claimant has developed traumatic arthritis of the right ankle as a result of the original work injury which requires additional medical care. 2. To date, defendant has denied responsibility for claimant's continuing problems in her right ankle and has not offered reasonable care to claimant for these problems. . 3. Since June 1987, claimant has been treated by a physician in the State of Arizona, Thomas Bodnar, M.D., and such treatment to date is reasonable and necessary treatment of the work injury consisting of exercises, steroidal and nonsteroidal anti-inflammatory medication. However, claimant's ankle pain continues to be severe and continuous. 4. Continued care by Thomas Bodnar, M.D., in the State of Arizona is in the best interest of claimant. Dr. Bodnar is a board certified orthopedic surgeon and most familiar clinically with claimant's current right ankle difficulties. 5. Proposed fusion surgery of the right ankle by Dr. Bodnar is a reasonable and necessary treatment option of the work injury although there may be preferable alternatives to such surgery. However, the surgery is designed to relieve pain and claimant is in the best position to decide whether the pain she experiences is worth the risk and potential hazards of surgery. She has the benefit of two second opinions at the present time from very qualified physicians and should be able to make an informed choice. CONCLUSION OF LAW Claimant has established under law entitlement to the medical benefits awarded below. ORDER 1. Defendant shall provide at their expense all treatment modalities and medication recommended by Thomas Bodnar, M.D., for claimant's right ankle traumatic arthritis, including any future surgery options which claimant may chose to undergo. 2. Defendant shall pay for the past treatment furnished to and prescribed for claimant by Dr. Bodnar beginning in June 1987 and listed in the prehearing report, including medical mileage expenses. Defendant shall reimburse claimant for any of these expenses paid by her. Otherwise, defendant is directed to pay the provider directly including any reasonable charges for late payment imposed by the provider. 3. Defendant shall pay the cost of the action pursuant to Division of Industrial Services Rule 343-4.33. 4. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 16th day of June, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. R. Ronald Pogge Attorney at Law Terrace Center, STE 111 2700 Grand Ave. Des Moines, Iowa 50312 Ms. Joanne Moeller Assistant Attorney General Hoover State Office Bldg. Des Moines, Iowa 50319 1302.1, 2905, 3800 Filed June 27, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER NANCY PATMAN Claimant, File No. 776700 VS. R E V I E W GLENWOOD STATE HOSPITAL, R E 0 P E N I N G Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 1302.1, 2905 Where impairment had increased by 50 percent, the magnitude of the change was held to be sufficient to establish that the change was not anticipated and that it was sufficient to warrant reopening of the award. 3800 Additional compensation for permanent partial disability was held payable commencing on the date of the decision which awarded it. 2505 Filed June 16, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER NANCY PATMAN, Claimant, File No. 776700 vs. R E V I E W - GLENWOOD STATE HOSPITAL, R E 0 P E N I N G Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendant. 2505 - Surgical Options The employer's failure to admit responsibility for providing continuing care resulted in their loss of the right to chose the care. All past medical services provided were awarded to claimant. Although there was substantial disagreement as to whether fusion surgery to relieve continuous pain to the ankle would be the best course of treatment for claimant, such proposed surgery was not shown to be unreasonable or unnecessary treatment option. It was held that the decision to undergo such surgery best lies with claimant and her treating physician. Only claimant is aware of the extent of her pain and whether such pain is sufficient to risk surgery and probable loss of range of motion in her ankle.